Lawyer: AG opinion on shorelands missing key statutes that reversed court decision.

Byline: Erika Strebel, erika.strebel@wislawjournal.com

Last week, Attorney General Brad Schimel released a legal opinion involving a county's authority to zone shorelands within a town.

But the opinion is incomplete, according to experts in environmental law.

"This AG's opinion doesn't take into account all of the underlying law that's applicable to the analysis of this question," says Larry Konopacki, a long-time environmental law attorney in Madison.

Oneida County Corporation Counsel Brian Desmond had asked Schimel in 2017 whether county officials could impose general zoning regulations on shorelands falling within the jurisdiction of towns that have not adopted the county's general zoning ordinance.

Schimel answered last week in the affirmative, citing the 2013 Court of Appeals decision in Hegwood v. Town of Eagle Zoning Board of Appeals. That case held that towns have no authority to zone shorelands.

Unhappy with that outcome, state lawmakers responded by passing Wisconsin Act 41, which allows towns to pass their own shoreland zoning ordinancesas long as the resulting regulation does not govern matters already dealt with by a county's shoreland-zoning ordinances. The legislation was just one of many changes made recently to the state's shoreland zoning laws.

Schimel's opinion doesn't analyze, or even mention, the effects of Act 41, said Konopacki, who works at Stafford Rosenbaum.

"I think that the decision is questionable based on the lack of analysis of the legislature's response to the Hedgwood case," he said.

State statute defines shorelands as land that's within 1,000 feet of the ordinary high water mark of a lake or landthat's within 300 feet of the ordinary high water mark of a river or stream.

The state...